SCOTUSBlog recently posted its always-valuable list of “Petitions to Watch” for the Supreme Court’s next conference. (The list is generally designed to be overbroad. Most of the petitions listed are denied, but most petitions that are granted were on the list.) One cert petition that is missing, but may still be worth watching, is a cert petition in Williams v. Johnson, a habeas case from the Ninth Circuit.

Normally when Judge Reinhardt and Judge Kozinski vote to deny a habeas petition, it is very unlikely that the Supreme Court will grant it. But there are some very unusual things about Williams. First, both judges wrote separate opinions suggesting that the Court ought to summarily reverse their decision. (Reinhardt: “uncomfortable as I am with that result . . .”; Kozinski: “I hope I’m wrong.”) Second, the case has been to the Supreme Court before, and the panel’s treatment of the case was caused by what was either an inadvertent error or an extremely irresponsible decision by the Supreme Court.

Basically, in the previous case, the Ninth Circuit had concluded 1, that no AEDPA deference applied to the case, and 2, that without deference the conviction was unconstitutional. The state asked the Supreme Court to review both the standard of review and the underlying merits, but the Supreme Court granted review only of the first question, the standard of review. At argument, a number of Justices suggested that the conviction was indeed troubling, but mostly focused on the standard of review.

The Supreme Court then issued an opinion about the standard of review, and said the Ninth Circuit was wrong and deference applied. It did not discuss the underlying merits of the case, which would normally mean that the Ninth Circuit should re-decide the case, under the proper standard. . . . EXCEPT for one sentence, in the introduction of the opinion, where the Court said:

Applying this rule in the present case, we hold that the federal claim at issue here (a Sixth Amendment jury trial claim) must be presumed to have been adjudicated on the merits by the California courts, that this presumption was not adequately rebutted, that the restrictive standard of review set out in §2254(d)(2) consequently applies, and that under that standard respondent is not entitled to habeas relief.

The rest of the opinion goes on to explain why the claim should be presumed to be adjudicated on the merits, why the presumption was not rebutted, and why the restrictive standard of review applies. It never again explains, or even mentions, why the respondent loses under that standard.

Even though this clause of the introductory sentence was unexplained, the Ninth Circuit concluded that it was bound to follow it, and not permitted to actually decide whether Williams’s conviction was constitutional under the correct standard. That may well be the right way for a lower-court judge to behave. But it suggests one of two troubling things happened at the Supreme Court: (1) The clause was included inadvertently, perhaps because an earlier draft of the opinion addressed the merits but was taken out at the request of another Justice. (2) The Court did indeed mean to resolve the merits of the case, but decided to include absolutely no discussion of the point outside of that introductory reference, even though the issue had seemed difficult to several members of the Court. I really hope that’s not what happened, because that seems very irresponsible.

Ms. Williams has now filed a cert. petition, which is pending for the April 18 conference. The state has not filed a response to the petition, and the Court has not even asked for a response, which means that as matters stand, it will be denied as a matter of course. (The lack of a response, and the IFP status of the petition, are probably why it’s not on the SCOTUSBlog list.)

Maybe the underlying claim ought to fail under AEDPA’s deferential standard, but it seems to me that some court ought to have been given the chance to address the appeal.

UPDATE: Thanks to Kent Scheidegger for pointing out in the comments that the district court did review the merits of the claim before the court of appeals granted a certificate of appealability. I’ve revised the last sentence accordingly.

SECOND UPDATE: This morning (4/14/14), the Court requested a response to the petition. That does not necessarily mean anything will happen, but given the issue involved, that strikes me as a prudent response in any event.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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